Pennsylvania Railroad v. Butler , 1868 Pa. LEXIS 109 ( 1868 )

The opinion of the court was delivered, by

Sharswood, J.

This was an action by the defendants below as guardians of the minor children of William Butler, deceased, against the plaintiffs in error, to recover damages on account of the death of their father, caused as it was alleged by negligence.

The 1st error assigned has been properly abandoned, as it is too well settled to be now controverted, that a stipulation by a common carrier that he shall not be liable for damages, does not relieve him from responsibility for actual negligence by himself or servants. Groldey v. Pennsylvania Railroad Co., 6 Casey 242; Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315. The charge was as favorable to the plaintiffs in error on this point as they could have asked.

The 2d error assigned is, that the learned judge erred in his instructions to the jury as to the measure of damages. These instructions were as follows: “ It would perhaps be a fair way to estimate the amount of damages, to take the probable amount of his (deceased’s) accumulations for the time he might reasonably have been expected to live, and find that for the plaintiff. This, as we said, may be a fair way of calculating the damages sustained; but as it has been said in Pennsylvania Railroad Co. v. McCloskey, 11 Harris 526, if you can find a better rule you are at liberty to adopt it. In estimating his accumulations, you will remember that it might not be fair to deduct his family expenses, because his family lived out of it, and now they do not have it to live upon.” We think that there was manifest error in this instruction. It gave the jury no definite measure of damages whatever, but left them at liberty to adopt any one they saw fit. The case of Pennsylvania Railroad Co. v. McCloskey, 11 Harris 526, to which the learned judge referred, was an action by the personal representative of the deceased under the Act of April 15th 1851, and has no applicability to an action instituted as this was under the Act of April 26th 1855, as is shown by the present Chief Justice in his opinion in The Pennsylvania Railroad Co. v. Zebe, 9 Casey 318. There is no doubt an inherent difficulty in placing a pecuniary value upon human'life, especially the value of a father’s life to his children. Yet it is certainly important that a clear and definite rule should be established, and as this case goes back, it seems to be our duty to say what the instruction of the court below to the jury ought to have been. After an attentive examination and review of all the cases which have heretofore been decided, we are of opinion that the proper measure of damages is the pecuniary loss suffered by the parties entitled to the sum to be recovered — in this instance the children of the decedent — without any solatium for distress of mind; and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone for the benefit of his children, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure. This mode of stating the rule is substantially that which was adopted by the learned president of the Twelfth Judicial District (Judge Pearson), in Fink v. Garman, 4 Wright 95, but which, as it was acquiesced in by both parties and no exception taken, was not passed upon by this court.

The 3d assignment of error is, because the court erred in admitting the testimony of George W. Wiley, touching the dependence of the plaintiffs below on their grandparents, and the circumstances of those grandparents. This was clearly irrelevant, and had no bearing whatever on the true measure of damages, the pecuniary loss' of the plaintiffs. The learned judge below became convinced himself that it was so, and in his charge withdrew it entirely from the consideration of the jury. That this may sometimes be done has certainly been decided. The rule upon this subject with its qualifications, is well stated and explained in The .Delaware and Hudson Canal Co. v. Barnes, 7 Casey 193. It is in entire accordance with the opinion in that case to hold, as we do here, that if improper evidence is given tending to inflame the damages, and it is not struck out at or before the close of the testimony, so that counsel shall not be allowed to refer to or dwell upon it in their address to the jury, it is altogether too late to cure the mistake by directing the jury to disregard it in tho

charge. Such was the fact in this case, and we are of opinion, therefore, that this assignment of error is sustained.

Judgment reversed, and venire facias de novo awarded.